Wellesley, Massachusetts
Law Office of Lawrence G. Hoyle
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Aging and Incapacity

 

Myth or Fact?

There are many misconseptions regarding the subject of aging and incapacity. Listed below are some of the most common:

Myth: If I ever need nursing home care, the nursing home will immediately take my home and other assets.

Fact: As a general rule, nursing homes do not take assets. They provide nursing care and send monthly bills to the persons receiving that care. It is the responsibility of the recipient of the care to make arrangements to pay the bills. Those arrangements may include liquidating assets to raise cash and applying for MassHealth benefits when the funds have been depleted. However, if a person has funds, investments and property and does not qualify for MassHealth, and if that recipient of nursing home services fails to pay the bills, then the nursing home’s attorney may recommend to the nursing home that legal proceedings be commenced to collect the amounts due. Those proceedings may include the nursing home obtaining a court order to seize and sell assets.

Myth: If I ever need nursing home care, MassHealth will immediately take my home and other assets.

Fact: The MassHealth program, also known as Medicaid, is administered by the Division of Medical Assistance. It is a state welfare program funded in part with federal funds. MassHealth pays for medical expenses and skilled nursing facility expenses for individuals with low income and limited assets. Individuals must apply to MassHealth to receive those benefits. Generally, MassHealth does not take assets. The agency either approves or denies your application for benefits. If your application is denied, you must pay the nursing home bills on your own without assistance from the Commonwealth of Massachusetts and its MassHealth program.  However, if you become eligible for MassHealth while in a nursing home and own real estate, a MassHealth lien may be placed on the real estate.  If you die after receiving MassHealth benefitis, the agency has a right to recover the amount of benefits paid on your behalf from your estate.

Myth: If I become ill and I am considering going to a nursing home to get the medical care I need, I should immediately give away everything I own.

Fact: Not everyone should, needs to, or can give away his or her assets. This type of planning is often referred to as Medicaid planning. Whether or not to do Medicaid planning and what changes to make, if any, depends on many factors. Those factors include how soon the person expects to need nursing home care; whether the person needing care is married or single; his or her age, health status and financial circumstances; and his or her family situation. Financial considerations include the amount of income available to pay for the care; the type and value of assets owned by the person or married couple; the income tax consequences of choosing one course of action over another; whether or not the person has long-term care insurance; and the degree of financial control the person wants to retain.

Myth: If my spouse or I enter a nursing home, we will have to sell our home to pay the nursing home bills.

Fact: A married couple’s home does not have to be sold in order to qualify for MassHealth benefits. A home is an exempt asset under the MassHealth regulations. Further, for as long as one of them lives in the home, no MassHealth lien can be placed on it.

Myth: I can sell my home to my children for one dollar to protect it from the costs of nursing home care.

Fact: A “sale” for one dollar is not considered to be a sale. It is a gift.  It would be treated as a disqualifying transfer if the person who conveyed his or her home did so within five years of applying for MassHealth benefits.

Myth: I have a trust, so my home and other assets are protected from nursing home costs.

Fact: Not all trusts provide protection. For example, the assets of a revocable living trust are counted as assets for MassHealth eligibility purposes and are therefore not protected. For those trusts that do provide protection, they can only protect assets that are actually owned by the trust and that were transferred into the trust several years prior to applying for MassHealth.

Myth: If I begin to forget things or become disoriented, someone will make me move out of my home against my will and put me into a nursing home.

Fact: Until the Probate and Family Court in the county where you live finds you to be legally incapacitated and in need of a guardian, no one can force you to do something you do not want to do. In most cases, a decision about whether or not to seek care at a nursing home is made by a person in consultation with his or her family and medical care providers.

Myth: If my doctor diagnoses me as having dementia, court proceedings will be required and a legal guardian will be appointed to take control of all of my personal and financial affairs.

Fact: Whether or not there would be any changes to your living and financial arrangements would depend on the type and severity of the dementia; the living, medical care and legal arrangements you made in advance of the illness; and whether or not you agree at that time to have someone else take control of your personal and/or financial matters. With regard to medical decision-making, if you have a health care proxy, your illness would have to rise to the level of incapacity in the opinion of your doctor before your health care proxy would become effective. At that point, your health care agent would have legal authority to make medical decisions on your behalf. If you have a general durable power of attorney, your attorney-in-fact could take control of your financial matters at any point in time without regard to whether or not you had become incapacitated. If you did not have a durable power of attorney or health care proxy, then a petition could be submitted by a family member or some other interested person to the Probate and Family Court for appointment of a conservator or guardian.  A certificate from your doctor stating that you are mentally and/or physically incapacitated would be required to accompany the petition to the court. A conservatorship is for financial matters. A guardianship is for personal matters.  Once appointed, a guardian can admit you to a nursing home under certain circumstances on a short-term basis.  Otherwise, court approval would be required. 

Myth: If someone begins conservatorship or guardianship proceedings against my wishes, I cannot do anything about it.

Fact: You have the right to be represented by legal counsel, at your own expense. In addition, the court will customarily appoint a guardian ad litem, who is usually an attorney, to investigate your circumstances and report back to the court with a recommendation on whether or not a conservatorship or guardianship is needed, and on whether the person seeking the appointment is the appropriate person to serve as conservator or guardian.

Myth: If I am in a nursing home, I lose all of my rights and the nursing home and doctors can do anything they want concerning my care.

Fact: Unless you are incapacitated, you continue to make decisions concerning your care and retain all of your legal rights. If you become incapacitated and have a health care proxy, your health care agent will have legal authority to address medical matters for you. If you do not have a health care proxy or if the circumstances warrant, a legal guardian can be appointed to look out for your interests. The guardian would exercise all of your legal rights with regard to personal and medical decisions unless otherwise limited by the court. Whatever your legal circumstances may be, it is wise to have a family member or friend regularly visit you in the nursing home to check on you and help you address concerns that may arise.

Aging and Incapacity

One Hollis Street, Suite 422 | Wellesley, MA 02482 | 781.489.1489 | larry@attorneyhoyle.com

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